Court of Appeal dismisses appeal against sentence for indecent assault, upholding consecutive sentences and mitigation.

An Chúirt Achomhairc Choiriúil

The Court of Appeal

Circuit Court Bill No: GYDP0010/2022 Appeal number CCAOT0306/2024 Neutral Citation No: [2025] IECA 236

Charleton J McCarthy J O’Moore J

Between The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

AND

DL Accused/Appellant

Judgment of Court delivered by Mr Justice Charleton, 25 November 2025

1. This is an appeal against the severity of a sentence brought by the appellant, DL, for 8 charges of indecent assault contrary to common law against two victims, who were his younger siblings. All offending occurred between 6 June 1977 and 11 May 1981. DL pleaded guilty to all the offences of indecent assault against him on 12 December 2023, which was the trial date. The offending towards DL’s younger sister began when she was nine and he was 14 years old and ended when she was 13 and he was 17. DL’s sexual abuse of his younger brother occurred from when he was

14 years old and his brother was aged 11, until DL reached 17 years of age and his brother 14. The sentencing judge, His Honour Judge O’Callaghan, set a headline sentence of nine years, overall. A consecutive sentence of 4 years and 6 months was imposed with respect to four counts and a further consecutive sentence of 4 years and 6 months imposed with respect to four other counts with 18 months suspended in respect of each of the 4 years and 6 months. The overall sentence was therefore six years with the final 12 months suspended for two years. This appeal now centres on whether the mitigating factors can be said to have properly been reflected in the reduction from the headline sentence. With regards to the imposition of consecutive sentences in this case, it is said that there was a lack of reasons given as to their use, and that there was disparity in the way mitigation was applied generally which constituted an error in principle.

Background

2. The abuse occurred over four years during the late 1970s and early 1980s. The offending against the younger brother included both sexual assault and penetration. The brothers shared a bedroom and a double bed in the family home. During this first year of sharing a bed, the appellant would fondle his brother’s penis. The two then moved to a new bedroom and had respective single beds. DL would enter his brother’s bed at night and anally rape him. On a number of occasions, he would also force his brother into performing oral sex on him. DL would also masturbate his brother, but would impede him from ejaculating. As DL got older, his actions became more aggressive towards his brother, including beatings, all of which contributed to great fear being instilled in his younger brother. Counts 1 and 4 pertain to the sexual assaults in this case, where sentences of six months and eight months were imposed respectively, whilst counts 8 and 12 pertain to the oral and anal rapes, wherein a consecutive sentence of eight months and ten months were imposed on each respective count.

3. DL also sexually abused his younger sister who was aged nine when the offending began. The first instance occurred in the back of their father’s car, wherein he placed his hand inside her underwear and fondled her genitals. This then went on to occur multiple times in the family home. DL would also bring his sister to his bedroom and ask that she lick his genitalia. He would also perform oral sex on her and digitally penetrate her, which would cause her pain. The abuse furthermore extended to DL placing his penis in-between his sister’s legs and humping her near her groin but not penetrating. On another occasion, DL’s sister was made to masturbate him, whilst he digitally penetrated her. This incident stopped when their father came into the sitting room. In another instance, whilst being sexually assaulted in DL’s room, the complainant was told he was going to penetrate her. He became aggressive, tried to use his body weight to hold her down and attempted to spread her legs. The complainant’s shouts however were heard by her brother, who came in and pulled him off his sister. Counts 18, 22, 25, and 28 reflect these offences, for which six-month, eight-months, eight-months, and 18 months with the final 12 months suspended sentences were imposed on each respective count.

Grounds of Appeal

4. Four grounds of appeal are now argued before this Court. It is submitted that the sentencing judge:

1. Imposed a sentence which was excessive in all circumstances;

2. Failed to identify an appropriate headline sentence in light of the DL’s age at the time of the offending;

3. Failed to properly mitigate from the headline sentencing considering the guilty plea which was entered, the expression of remorse on behalf of DL, the absence of criminal history and DL’s personal circumstances;

4. Failed to exercise his discretion in a proper manner when imposing consecutive sentences and failed to give reasons as to why a consecutive sentence would be appropriate in these circumstances. Appellant’s submissions

5. It is contended that, although the sentencing judge made reference to D's age at the time of the offending as a relevant factor, there was insufficient weight afforded to this matter in setting the headline sentence. It is argued that greater regard should have been had to his age at the time of the abuse. Reference is made to the English Court of Appeal case of R v Ghafoor [2002] EWCA Crim 1857, [2003] 1 Cr App R (S) 84. That case concerned Imran Ghafoor who was convicted of an offence of riot contrary to the Public Order Act 1986. He was seventeen years old at the time of committing the crime, but was convicted at the age of 18, with a four-and-a-half-year sentence being imposed. On appeal, this was quashed, and an 18-month detention was instead imposed, the general rule established being that the appropriate sentence to be imposed is that which the offender would have received had they been sentenced at the date of the offence’s commission. This is further enunciated at [31] of that case:

The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction should now be clear.

The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as “a powerful factor”. That is for the obvious reason that, as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both

(a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation, and less on retribution and deterrence than in the case of adults.

6. Further to this, the case of DPP v JH [2017] IECA 206 is cited in support of the argument that the offender’s age at the time of commission is essential in determining the headline sentence to be imposed. JH concerned repeated sexual assaults including oral rape committed by a 15-yearold-boy against an 11-year-old girl during visits to his home after horse-riding lessons with the boy’s sister, with whom she was friends. The trial judge initially set a headline sentence of eight years, reduced to four years to reflect the appellant’s youth and immaturity at age fifteen. On appeal, it was emphasised by the Court that the appellant was a child at the time of offending and that culpability must be viewed through that lens, the Court substituting a headline sentence of two years and six months. After consideration of mitigating factors, including an early guilty plea, and cooperation with Gardaí, the ultimate sentence imposed was eighteen months’ imprisonment, with the final six months suspended. It is therefore argued that a sentencing court is required to assess the offender’s level of maturity at the time of the commission of the offence and to accordingly measure his culpability as of that time.

7. DL further argues that in the light of the decision in DPP v TD [2021] IECA 289, the sentencing judge placed excessive weight on aggravating factors and failed to balance them against his young age. In TD, the appellant was convicted of two counts of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990, and seven counts of sexual assault and was sentenced to eight years imprisonment with the final year suspended. The victim was the appellant’s first cousin, and the offending commenced when they were 14 and 8 years old respectively. The sentence was reduced on appeal where the court emphasised that account must be taken in weighing the appellants age against the aggravating factors. The following was set out at [30] in relation to how age should be treated in sentencing:

30. It was suggested, on the authority of cases such as The People (Director of Public Prosecutions)

v T.E. [2015] IECA 218; The People (Director of Public Prosecutions) v. B.V. [2018] IECA 253 and The People (Director of Public Prosecutions) v. WD [2008] 1 I.R. 308, that the circumstances of the present case were aggravated by the level of harm done to the victim, by the fact that there was a sequence of offending of an escalating nature and by the fact that due to the age differential the appellant had been in a dominant position qua the victim who was particularly young and vulnerable. We accept that in principle these circumstances are capable of providing aggravation, but the extent to which the offence is in fact aggravated depends very much on context. There is no doubt but that the harm done to the victim was serious and significant. As the up to date victim impact statement provided to us in the last 24 hours makes clear, the harm caused is ongoing. However, as regards the aggravating effects of the escalating nature of the offending and the age differential, account must be taken in weighing these of the fact that that the appellant here was only

14 himself when the offending commenced and he had only just attained 18 when the offending ceased. We think that in the circumstances of this case the degree of ultimate aggravation provided by the matters pointed to was modest, having regard to the countervailing circumstance of the youth and likely immaturity of the appellant the effect of which would have been to mitigate his culpability.

8. It is argued that the mitigating factors present have not been taken into account to the appropriate extent. The guilty plea, whilst admittedly not an early one, is said to not have been given sufficient regard when deducting from the headline sentence, as well as the fact that 44 years have elapsed since the offending and that no further criminal acts have been committed of any kind. This, it is said, aligns with the principle outlined in The People (DPP) v PH [2007] IEHC 335 that, as rehabilitation is one of the major factors to have regard to in sentencing, where an offender has demonstrated such a marked change in their behaviour without further offending, a substantial discount on sentence may be warranted.

9. Lastly, it is contended that reasons were not provided for the imposition of consecutive sentences. Reference was made by the sentencing judge to the case of The People (DPP) v MJ [2021] IECA 233, and The People (DPP) v FN [2021] IECA 238, but no mention was made to the Supreme Court decision in The People (DPP) v MJ [2023] IESC 4. No clear principles or guidance is said to have been gleaned from these cases in the reasons given for the sentence, and no justification is offered, it is claimed, for the imposition of consecutive sentences. Director of Public Prosecutions’ submissions

10. The Director of Public Prosecutions argues that the headline sentence nominated by the sentencing judge cannot be considered to be excessive in the circumstances of this case. It is submitted that in arriving at the headline sentence of nine years, the sentencing judge appropriately considered the gravity of the offences, dictated by the harm caused and the offender’s culpability at the time of the offence’s commission. It is argued that the circumstances of this case were aggravated by the harm suffered by the victims, as evidenced in their victim impact statements, and by the escalating nature of the offending. It is further contended that the appellant occupied a dominant position due to the age-difference present, being three and five years older than his siblings, who were vulnerable and fearful of him. The Director of Public Prosecutions relies on authorities such as DPP v TE [2015] IECA 218 and DPP v BV [2018] IECA 253, where it was outlined that factors such as prolonged abuse, serious harm, and offending within the family home, traditionally a place of safety, heighten the gravity of sexual offences. Therefore, the Director of Public Prosecutions agrees with the approach taken by the sentencing judge in imposing a sentence for each of the offences near to the maximum penalty and that appropriate mitigation was afforded to each sentence.

11. Additionally, the Director of Public Prosecutions counters the argument that the sentencing judge did not have adequate regard to the DL’s age and maturity levels at the time of the offending. The cases of DPP v TD and DPP v BV are acknowledged to the effect that being a minor when committing an offence can reduce culpability, but that it does not eliminate responsibility, particularly, it is argued, where offending persists over years and worsens in nature. It is argued that there was express consideration by the sentencing judge and mention of the ages relevant to the circumstances, but that this was balanced against aggravating features including the protracted period of abuse, the harm done to the victims, and the breach of trust within the family home. Furthermore, whilst DL relies on Ghafoor to argue for a greater discount based on youth and rehabilitation, it is contended by the Director of Public Prosecutions that this was in fact present in the sentencing judge’s reasoning, as evidenced in the reduction from nine to six years and the suspension of the final twelve months to incentivise rehabilitation. It is therefore argued that this approach aligns with the totality principle and ensures proportionality to the gravity of the crimes. Impact on the victims

12. Victim impact statements were given by the victims. They have both had a terrible time in childhood. The younger brother describes a sense of “being trapped” to the point of not being able to fulfil a sense of self-actualisation, or “wanting to be something or someone else, knowing I can’t be either” as a result of the abuse he suffered. He describes intervening when DL was targeting his sister one day, and thereafter being subjected to sexual abuse in the middle of the night, being forced to perform oral sex on numerous occasions, and the shame he felt after being anally raped. The complainant talks about the fear that was created as a result of the offending, and the level of control that was exerted over him by his brother as a young boy. He felt used for sexual gratification, when he should have relied on his older brother for safety and comfort. This led to drinking problems and drug abuse in his late teens to early young adult life, suicide attempts, and leaving school aged 15.

13. The younger sister also describes being severely affected by the breach of trust which occurred in this case. She describes a strong feeling of fear and anxiety which dominated her, which contributed to an inability to tell her parents of what was going on due to the shame DL made her feel. She also struggled academically, living in “survival mode” and being more preoccupied with trying to foresee what would happen next at home rather than focusing on her studies. The abuse is described to have become more and more violent as the years went on, and had her brother, the other complainant, not intervened, she maintains she would have been raped by DL. She explains similar feelings of never feeling fulfilled, stating that she “coped through...teenage years by drinking and smoking and being tough on the outside, but inside [she] was a terrified five-year-old who never got the chance to grow, learn or reach her full potential.” Due to the abuse, she has developed PTSD and anxiety. Analysis

14. All those involved were children at the time of the offending. It is evident that the judge was cognisant of the fact that all parties were very young at the time, and that the lack of maturity was an important feature of this case. He stated that this case deals with “three children, one very young lady, one middle-aged child and one older child”, leading to DL’s young age being strongly considered in setting the headline sentence: “When imposing these headline sentences this Court is taking into account that there is a deduction made because of the offender's young age. Allowance has been made for that. If the offender was an adult at the time the headline sentences would be substantially higher.” It cannot therefore be said that DL’s age was not taken into account. As to whether the regard given to this factor was sufficient, TD makes clear that, whilst youth is a very significant factor to take into account when setting the headline sentence, it is not determinative, and cannot work to overshadow the gravity of the offending. In other words, while minority and immaturity can substantially reduce culpability, as was in fact reflected here in the altering of the headline sentence, they do not eliminate responsibility, nor do they justify a sentence that fails to reflect the gravity and duration of the abuse. These are relevant extracts from the judgment of the Supreme Court in The People (DPP) v CC [2025] IESC 11 per O’Malley J:

21. The Constitution does not, by the same token, prescribe any particular process or outcome for criminal prosecutions against children. Children are not immune to the criminal justice process and can be subjected to punishment. The point is that the guarantees of fair procedures and equality may, in the cases involving child defendants, justifiably be implemented by way of trial procedures that are adapted to accommodate at least to some extent (without compromising the fundamental principles according to which a criminal trial is conducted) certain relevant features of childhood.

22. There are several reasons why the law should extend particular protection to children rather than simply treating them as holders of rights, similar to but narrower in scope than those of adults. The weakness and vulnerability of children means that they require protection, such that, for example, the State must in some circumstances intervene in the authority of the family unit in order to protect the interests of a child.

23. Another reason to accord recognition to the status of childhood is the interest shared by society and the State in attempting to ensure that children grow to adulthood as integrated members of the community. As a matter of common knowledge, children in general simply do not have the level of ability to think ahead, understand consequences, make choices about their behaviour or control their own impulses in the way that would be expected of adults, and so it follows that they have a lesser culpability in respect of criminal behaviour. But it is also significant that because the personality is still in the process of development, children have a relatively greater prospect of rehabilitation. That is a matter of importance to the general community, and not just to the individual child.

24. These factors - the vulnerability of children, their lesser culpability, the societal interest in assisting their development and the greater prospect of rehabilitation - are central features of the modern criminal law as it relates to children. It will be seen that they are reflected in the Children Act 2001. This does not mean that in a criminal prosecution the interests and welfare of a child defendant should necessarily take primacy over other interests. The contrast with care proceedings or custody disputes is obvious - those processes are concerned primarily with the interests of the child, but a criminal trial involves a far more complex range of rights and interests. There is in each case the broad interest of society in the prosecution and punishment of crime. In most cases there will be one or more victims whose rights also have to be protected and vindicated, and those victims may in some cases be children themselves. The need to have regard to those other rights and interests may mean that it is inevitable that involvement in the criminal justice process can distress and sometimes even cause damage to a child defendant. That does not, in itself, necessarily involve a breach of individual rights.

…

184. I said above that the protection of the status of childhood requires the courts to take account of the reasons for that protected status - the vulnerability of children, their lesser culpability for criminal behaviour, the societal interest in assisting their development and the greater prospect of rehabilitation. Those factors are, and have always been seen as being, of particular importance in the selection of punishment for children and must be given appropriate significance.

185. I would lay particular emphasis on the lesser culpability of children. The Scottish Sentencing Council's guideline for sentencing young people (published in 2023) is based on an "umbrella" review of over 300 scientific studies, from around the world, on the development of the human brain. While the science itself, and the manner in which different parts of the human brain develop, might require to be the subject of expert evidence in an individual case, the basic findings of the review come as no surprise and could simply be seen as confirmation of everyday experience. It seems to me that in principle the expert evidence received by the Court of Appeal of New Zealand in Dickey is, broadly, to the same effect. Children are generally less able to exercise good judgment than adults, are more vulnerable to negative influences like peer pressure or exploitation by others, may be less able to think about the consequences of their actions and may take more risks.

186. I would also emphasise the significance of a child's greater amenability to rehabilitation. Rehabilitation is not the sole objective of a custodial sentence, but it is highly significant in cases involving children because they are still in the process of development towards mature adulthood. Society has an important interest in that development being successful.

187. In general, I would hold that the lesser culpability of a child means, in principle, that it will often be appropriate to impose a shorter, or even a significantly shorter, sentence on a child than the sentence that might be appropriate or even mandatory in the case of an adult. It is not desirable to lay down a general, binding proposition to the effect that this should always be the case - individual crimes will vary greatly in gravity and individual offenders will vary in culpability.

15. Aside from DL’s youth, the sentencing judge also recognised the effect of the guilty plea, stating: “[i]t may be taken for granted that any penalty imposed...would have been substantially greater were it not for that plea, even though it was late.” Furthermore, in listing factors which go towards mitigation, the sentencing judge referred to DL's absence of prior convictions, the impact of the conviction itself by being on the register of sex offenders and the impact on his family, the remorse shown, and the low-risk of re-offending. It may be useful to set out the way in which mitigation was applied in relation to each count where the brother was the victim for clarity as follows:

• Count 1 (initial fondling): Headline sentence 10 months, reduced to 8 months after mitigation.

• Count 4 (masturbation incident): Headline sentence 14 months, reduced to 12 months.

• Count 8 (progressive force): Headline sentence 18 months, reduced to 16 months.

• Count 12 (anal rape): Headline sentence 20 months, reduced to 18 months.

16. The same approach was applied to the sister’s on the counts where she was the victim:

• Count 18 (fondling): Headline 10 months, reduced to 8 months.

• Count 22 (masturbation-type conduct): Headline 14 months, reduced to 12 months.

• Count 25 (forceful conduct): Headline 18 months, reduced to 16 months.

• Count 28 (attempted rape): Headline 20 months, reduced to 18 months.

17. What is evident from this is that the headline sentences increased incrementally to reflect the worsening of the offending with regards to the violence and forcefulness evidenced. There is therefore a calibration of the sentence imposed on each count to reflect the gravity of same, before the application of deductions for mitigating factors. The sentencing judge was entitled to set headline sentences at the upper range, bearing in mind the nature of the offending in this case, the violation of trust, and the prolonged period of abuse which the complainants had to suffer. Proper deductions were made for the mitigating factors, and reference is made to DL’s age, the late guilty plea, and the lack of offending in the intervening years.

18. It was also submitted that consecutive sentences were used without proper explanation on behalf of the trial judge. There is nothing stopping a sentencing judge from imposing a consecutive sentence. Whilst their use should be sparing, a consecutive sentence should apply where concurrent sentences would fail to reflect the gravity of the offending; The People (DPP) v MJ [2023] IESC 4. This is also subject to the totality principle, in ensuring that the overall sentence remains proportionate to the criminal conduct. Consecutive sentencing is not reserved for rare or exceptional cases, but it does require justification. This justification may come in the form of balancing historical statutory frameworks with contemporary understandings of harm. In other words, as outlined in MJ, sentencing standard have evolved over time, creating “a degree of tension” between older statutory provisions and the now-accepted effects of the harms caused by sexual abuse. The trial judge justified the imposition of consecutive sentences in the following way:

Finally, with regard to count number 28, the Court notes that this in effect was an attempted rape of [the appellant’s sister] and only for [the appellant’s brother] we -- thankfully his presence resulted in his younger sister being saved from the final acts but nonetheless it was a most seriously aggressive, forceful and frightening experience for this young girl of approximately 11 years of age. So, the Court will impose a headline sentence, again allowing for his youth -- that's [DL’s] youth -- at the time, 17 years of age, will impose a sentence of 20 months headline with the same mitigated to 18 months. It is this Court's view again that these are offences which must stand on their own. They are progressive -

- there is progressive offending involved. The nature of offending is progressively worse throughout the period and accordingly the Court feels obliged to make it consecutive to the other resulting in a similar cumulative sentence of four years and -- I have it five months.

19. It is therefore not against a proper sentencing process to impose consecutive sentences in this case. No error in principle can be found based on this, and it is clear that the sentencing judge believed this appropriately reflected the gravity of the offending. Regard for the totality principle was had in the following way:

In addition to his young age this Court must also repeat its concern with regard to the role of adults in the house at the time and I'm very slow to criticise parents going back over the years but let's be honest about it, it's a serious factor in this case that this type of conduct could take place over such a long period of time of three years in what appears to have been a very good home otherwise but which of course for these two people was an appalling home and that there seems to have been a certain failure in that regard. That's not excusing for one moment the conduct of [DL] but it is an issue which this Court has to acknowledge and bearing that in mind it is this Court's view that the total sentencing of nine years, i.e. four and a half years in respect of each of the victims, should be further discounted under the principle of totality and therefore it is the Court's view that the sentence to be imposed should be one of six years, i.e. a discount of 18 months in respect of each, and then to incentivise rehabilitation the Court will suspend the last 12 months of the six years. So, accordingly on the issue of totality, the nine years is reduced to one of three years -- one of six years and the sentence to be imposed is one of -- the total sentence is one of six years with the final 12 months suspended.

20. Finally, many years have passed. These have been years of suffering for the victims concerned, despite the passage of decades. In turn, what has been revealed has had a grim effect on the family of DL. In the meanwhile, there has been good conduct. Hence the principles in The People (DPP) v PH [2007] IEHC 335 are applicable. DL has turned his life around. That was a proper discounting factor but in this case cannot weigh the balance against what in the context of the gravity, repetitiveness and harmfulness of the offending was a moderate sentence that also takes the passage of time as mitigating. Result

21. In the result, no error of principle has been identified. There is no basis to interfere with the sentence and the appeal is dismissed.